public good, he is corrupt, and the agreement void, even though, in the actua exercise of his influence against his conscience, he resorts to no unlawful means Such bargains cannot be enforced in law; and the reason why they cannot be enforced is, not merely because they are made criminal acts by statute, or are opposed to the provisions of the constitution, but because of their own inherent turpitude, because they are corrupt and corrupting, because they are destructive to public virtue and the welfare of the community. In republican governments especially, whatever tends to destroy the purity of the elections should be guarded against with the strictest watchfulness, and pursued with the most prompt condemnation by courts and legislators." G. S. H.

REPORTS OF CASES IN LAW AND EQUITY DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW YORK. By OLIVER L. BARBOUR, LL.D. Vol. 34. Albany: W. C. Little, Law Bookseller, 1862.

The appearance of this volume leads us briefly to describe for the infor mation of our readers residing out of the State of New York, the organization of the Supreme Court, and its method of rendering decisions. The court consists of thirty-three judges, who meet as an entire body once in two years, with the object of establishing and modifying rules of practice. For the purpose of ordinary business, the court is organized by the erection of eight judicial districts, in such a way that arguments in banc are heard before either three or four judges, who are said to hold a General Term. The functions of this tribunal are, with a single exception, of an appellate character. Cases appealed from the County and Surrogate Courts are heard here, as well as appeals from certain orders made, and from the judgments rendered in the Supreme Court, either at the Special Terms, or upon verdicts at the Circuit, or upon the reports of referees. The original business of the Court in Law and Equity is transacted before a single judge at Circuit, or at Special Term.

This volume of reports contains many interesting and valuable decisions. The reporter has wisely confined himself, as a rule, to the publication of decisions of the court at General Term. There are but three Special Term decisions in the volume, and these may be thought to be of such interest as to warrant an exception in their favor. Cases of this kind should in general be published in the monthly serials. It is to be hoped that the salutary rule thus adopted will be adhered to.

The recent practice, originating in the first judicial district (New York City), of preparing, in most of the cases, brief opinions, is worthy of general imitation. Most of the time spent by judges in composing extended and elaborate opinions would often be far more profitably employed in making

a condensed statement of the reasons for the judgment, and in skilfully distinguishing the case from prior decisions. It may be hoped that the praiseworthy example of the English courts may ultimately be adopted, and those cases only be discussed at length where, on account of the gravity and importance of the question, a full discussion is necessary The courts ought to assume that the profession is familiar with previous controlling authorities upon the same point, at least when they have been decided in the same State.

The practice of delivering "per curiam" opinions, which seems to be revived in the same district, probably on account of the press of business, is not so praiseworthy. Quite a number of these are reported in this volume. The fact that a particular judge is responsible for the reasons given for a decision, is, to some extent, a guarantee that the subject has been carefully examined. It would seem to be a good general rule that ne opinion should be published which has not a voucher for its paternity.

The great variety of subjects discussed in the cases reported, strikingly illustrates the character of the business coming before the New York courts. We have not even space to allude to the principal decisions.

The volume contains in its Appendix eloquent and just tributes, by prominent members of the New York bar, to the memory of Hon. William Kent, son of the late distinguished Chancellor Kent.

Mr. Barbour's experience and skill as a reporter is a guarantee that his portion of the work is well done. We commend the volume to the favor. able notice of the profession. T. W. D.

A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS, including those of Public Companies. By EDWARD FRY, of Lincoln's Inn, Esq., Barrister-at-Law. SECOND AMERICAN EDITION, with Notes and References to recent English and American Cases. By WM. S. SCHUYLER, Counsellor-at-law. Albany, 1861.

This second American edition of the standard work of Fry is prepared by Mr. Schuyler as his first contribution to the advancement of legal science. The notes of the editor are judicious and comprehensive. The authorities are carefully and extensively examined, and their conclusions appear to be accurately stated. We hope that the encouragement given by the members of the bar to this work may induce the editor to continue in this department of professional labor, in which he promises to be highly successful. T. W. D.

THE

AMERICAN LAW REGISTER.

MARCH, 1862.

COMPETENCY OF WITNESSES.

Jeremy Bentham was certainly a very remarkable man. With his radicalism, there was so much common sense in his concluons upon legal reform, that in spite of very strong prejudices ey have been gradually making their way both in England and e United States, and in England faster than in the United States. or more than twenty years the professional mind in England ay be considered as settled upon the opinion that all arbitrary les of exclusion of testimony are unjust and inexpedient; and is opinion is not merely founded upon speculation, but created d confirmed by actual experience in the administration of the

. Practically now in the English courts all persons are comtent witnesses, their credibility being left to the jury. In a ter from Sir John Barnard Byles, author of the Treatise on Bills Exchange and now one of the justices of the Court of Common eas-to the writer of this article, March 3, 1860, he says: "You me the honor to desire my opinion on the practical effect of English statutes, tending to the abolition of the incompetency witnesses. As to the removing all disqualification from wit(257)

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nesses not parties to the cause, no difference of opinion exists. The change has proved a salutary reform with no attendant evils. As to admitting the parties themselves, and their wives, it has been found (as might have been expected) that on the one hand, the discovery of the truth is greatly facilitated, but that on the other. hand, perjury is greatly increased. Yet I think the general opinion is, that the advantages of the change much outweigh the evils. Certainly my experience at the bar and on the bench has led me to that conclusion decidedly, yet I would not extend the capacitation to defendants in criminal cases, nor to inquiries into adultery between man and wife."

England, however, did not jump at once to the conclusion finally reached, but proceeded slowly and cautiously step by step, trying the effect of one change before proceeding to adopt another more extreme and radical. First came the statutes 3 and 4 William IV. c. 42; which enacted, that "in order to render the rejection of witnesses on the ground of interest less frequen, if any witness should be objected to as incompetent, on the ground that the verdict or judgment in the action would be admissible in evidence for or against him, he should nevertheless be examined; but in that case the verdict or judgment should not be admissible for or against him, or any one claiming under him." A much greater change was, however, made by the statute 6 and 7 Vict., c. 85; which removed incompetency by reason of incapacity from crime or on the ground of interest in all persons except the parties to the suit, or the persons whose rights were involved therein, such as the real plain tiff in the fictitious action of ejectment, or any person in whose immediate and individual behalf any action was brought or defended, or the husband or wife of such persons. These provisions having been found to operate beneficially, the statute 14 and 15 Vict., c. 99, was passed, by the first section of which the proviso in the statute 6 and 7 Vict., c. 85, (which excluded all persons directly interested in the suit) was repealed. By the second section, the parties and persons in whose behalf any action, suit, or other proceeding is brought or defended, are made (except as therein excepted) competent and compellable to give evidence on behalf of either or

any of the parties to the suit in any court of justice. The third section of the statute provides that it shall not render any person charged with an offence, competent or compellable to give evidence against himself, nor shall it in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. The fourth section of the statute further provides, that it shall not apply to any proceeding instituted in consequence of adultery, or to any action for breach of promise of marriage. It was decided soon after it had become law, that the second section of the statute did not render a wife admissible as a witness for or against the husband; and in consequence, the statute 16 and 17 Vict., c. 83, was passed, enacting that the husband and wife of the parties to any suit, or of the person on whose behalf any such proceeding is brought or defended, shall thereafter be competent and compellable to give evidence on behalf of either party or any of the parties. Neither husband nor wife is compellable, however, to disclose any communication made or received during marriage; and neither party is a competent witness in a criminal proceeding, or in any proceeding instituted in consequence of adultery.

Such is a brief synopsis of British legislation upon the subject; and now the important question is, whether some or all of these changes ought not to be introduced into the jurisprudence of the United States. In the State of New York they have been all introduced-parties are competent for themselves, and compellable to testify for the adverse interest. So far the change seems to have worked well in that State.

It would seem the dictate of prudence, that such alterations should be proceeded in gradually and cautiously, as they have been in England. The public should be accustomed to such important changes by degrees. The danger is, that the sudden throwing open the doors of evidence might at once admit too great a crowd, and the profession and community might become disgusted with some of the immediate consequences, and the system be repealed as suddenly as it was enacted, without having had a fair trial.